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22 March 2017

Reputation and Defamation: Legal Interpretation and Reform

(nb: This post has been typed out on my phone and will probably be revisited and edited later. Comments relating to the #SpeechBill are based on my own experience and inability to find it publicly accessible online. It's possible that it has been uploaded somewhere but that despite asking and looking for it, I simply haven't found it. I have no idea of whether the draft I saw is accurate. Disclosure: I was involved in developing strategy in the SLAPP suit mentioned in this piece.)

Indian law relating to defamation and reputation has been contested and is of concern. Defamation is a criminal offence, and is considered to be a civil wrong under tort law. The elements of what constitutes defamation in each case are slightly different, as are the defences available to allegations of defamation. Under tort law, for example and in contrast to criminal law, a dead person cannot generally be defamed while under criminal law, in contrast to tort law, 'truth' is not necessarily considered to be a defence to allegations of defamation.

There is reportedly a bill which has been introduced in the Lok Sabha, the lower house of Parliament, to address the concerns which have arisen over the years in relation to defamation law. Inexplicably, however, it appears not to have been made publicly available online leading to what seems to be a rather lamentable lack of transparency. A copy of what may be the bill obtained privately indicates that it aims to consolidate and possibly supplant existing defamation law by repealing the law relating to criminal defamation and by codifying the law relating to civil defamation in statutory form. (This comment about the content of the bill, however, may not reflect the correct position since it has not been derived from an authoritative source.)

Assuming that the #SpeechBill, as its been popularly referred to does indeed aim to codify and supplant tort law relating to defamation, it isn't entirely clear what the need to do so is even though the bill appears to contain important provisions which do such things as limit the persons who may legitimately make allegations of defamation in court. If, however, the bill merely intends to supplement tort law by explicitly making such provisions part of Indian law, thus potentially keeping persons entirely unrelated to the person alleged to have been defamed from marching to court, nothing could be more welcome. Unfortunately, given that the bill doesn't seem to be publicly accessible, it isn't clear what it actually seeks to do.

Loosely speaking, tort law is based on precedent, and, given that Indian courts may be persuaded by foreign courts' determinations, this means that there literally exists centuries of history across jurisdictions one can fall back on to attempt to find viable defences to allegations of defamation which are perhaps unfamiliar to the Indian corpus juris, and which may not be contained within a statute, proposed or otherwise. This, in fact, is exactly what happened in the Tata/Greenpeace case which, drawing from literature and poetry, supported by foreign case law likely introduced 'hyperbole' as a defence to defamation in Indian civil law in what was widely believed to be the country's first SLAPP suit. Limiting the possibility of developing new defences to defamation through codification seems to hold the potential to be inconsistent with free speech, and may be far from ideal.

When it comes to criminal law, the #SpeechBill appears to seek to simply decriminalize defamation which, if it were to happen, would definitely enhance free speech since, going by anecdata, criminal defamation has a particularly potent ability to be used as a tool to harass people or to have them censor their own speech in a manner which is induced by fear and which may not be required by the law.

Criminal defamation was nonetheless held to be constitutional by the Supreme Court in 2016 in a decision which was subject to criticism. In its decision, the court linked Section 499 of the Indian Penal Code describing criminal defamation to Article 21 of the Constitution which states that 'no person shall be deprived of his life or personal liberty except according to procedure established by law'. This linkage is interesting given that it is Article 19 of the Constitution which explicitly deals with free speech by granting Indian citizens residuary rights: that speech which is not and is not capable of being proscribed by law according to the Article itself (which lists a limited number of grounds on which free speech may be restrained) is definitely permitted.

Article 21 of the Constitution, on the other hand, applies not just to citizens of India but to all persons and restrains the unlawful abrogation of their rights to life and personal liberty — the word 'personal' appears to have been inserted into the provision to circumscribe the personal liberty of Article 21 enjoyed by persons, and to distinguish it from the freedoms granted by Article 19 to citizens. As such, Article 19 could be considered to be wider than Article 21 when it comes to free speech since non-citizens do not enjoy the freedoms which citizens do to the same extent. That said, the two Articles do not necessarily detract from each other, and given the Supreme Court's recognition of the link between Article 21 and criminal defamation, it appears that an argument can be made to the effect that artificial persons cannot be criminally defamed.

Even leaving aside the fact that at least two High Courts have indicated that IPC Section 499 does not apply to the defamation of artificial persons, simply considering the history and placement of Article 21, in both Constitutional and wider historical frameworks, tends to lead to the same conclusion.

Article 21, unsurprisingly, finds itself placed between Articles 20 and 22 of the Constitution which deal with the protection of persons with regard to convictions for offences and preventive detention respectively. Although not a direct application of the principle noscitur a sociis, it would nonetheless be challenging to claim given its context, and the effective applicability of neighbouring Articles being intended to benefit natural persons, that Article 21 somehow escapes being limited and is intended to also benefit artificial persons. This is especially true since, taken to its logical conclusion, such an argument could conceivably result in an absurdity: that Article 21 is intended to protect the 'life' of companies and ensure that they remain in business forever.

The argument that Article 21 is intended to benefit natural persons and that, in consequence, IPC Section 499 is not intended to benefit artificial persons is also supported by the drafting history of the Article which finds its roots in the Magna Carta clearly which is intended to benefit natural persons. Although an early draft of the Article used the term ‘due process of law’ found in a medieval English statute (28 Edward III, Ch. III) then devoid of any of the protections which contemporary US jurisprudence has imbued the term with, it was the US experience with the term's ambiguity which seems to have convinced Indian drafters to avoid it altogether and fall back on the older formulation in the Magna Carta. Either way, however, the benefit in these old laws was intended to apply to human beings as a bare reading of their texts makes clear. And regardless of how one looks at Article 21, it is difficult to make the case that it was intended to benefit anyone but natural persons.

Challenges to this interpretation of law — of course there are challenges! — may be found within the text of IPC Section 499 itself. In the part relevant to which the first challenge may be raised, the provision reads as follows:

[Main body] Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.
Explanation 2.—It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.

Thus, an explanation of the main body of IPC Section 499, Explanation 2, appears to expressly indicate that artificial persons can be criminally defamed. However, an explanation of a provision cannot derogate from the main body of the provision itself, and the provision cannot derogate from the Constitution and remain valid. As such, it would be difficult to sustain the argument that Explanation 2 truly acknowledges that artificial persons may be criminally defamed especially since there is available a formulation through which Article 21 of the Constitution and IPC Section 499 along with Explanation 2 may be read harmoniously: Biswanath Somadder, J. of the Calcutta High Court had pointed out in the 2009 case of Kiar Sehen Pvt. Ltd. that:

Constitutional guarantee under Article 21, however, is always available to any person seeking protection under it, who may be working in such juristic entities; e.g., a Chairman or a Director or any officer or an employee, provided of course, they approach the Court in their individual capacity.

Simply because IPC Section 499 refers to artificial persons in Explanation 2, that is not necessarily reason enough to conclude that companies and other artificial persons can be criminally defamed. Even more difficult would be to claim that companies can be criminally defamed simply because the definition of ‘persons’ in Section 3 of the 1897 General Clauses Act includes 'any company or association or body of individuals, whether incorporated or not'. After all, the General Clauses Act too cannot derogate from the Constitution, neither can its definitions be legitimately applied to other statutory provisions which find them repugnant. And, in the case of IPC Section 499, there is every indication that such repugnance exists.

One final intra-textual argument supporting the claim that artificial persons can be criminally defamed lies in two exceptions to IPC Section 499, the Fourth and Fifth, which deal with courts, and read as follows:

Fourth Exception.—Publication of reports of proceedings of Courts
It is not defamation to publish substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings.Explanation.—A Justice of the Peace or other officer holding an inquiry in open Court preliminary to a trial in a Court of Justice, is a Court within the meaning of the above section.

Fifth Exception.—Merits of case decided in Court or conduct of witnesses and others concerned
It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a partly, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further.

Even leaving aside public policy imperatives which may cause courts to be accorded differential treatment on account of the importance of access to law, there is a clear indication that the reference to artificial persons in the form of courts in IPC Section 499 is nothing but metonymy — the explanation to the Fourth Exception itself clarifies that the inanimate court is a substitute for an animate natural person and, although it is not repeated in the Fifth Exception, without applying the same rationale to the latter (which the basic principles of statutory interpretation allow), it would be difficult to keep the Fifth Exception from being infructuous.

What emerges from this long, often tangential, discussion is that even as things stand there are often times when Indian law is less than clear when it comes to defamation. There are a multitude of issues which we need to look at closely, and, to be able to do so in a meaningful manner, we require as much data and transparency as we can possibly garner.

Update on March 23, 2017; 10:40 p.m.: I've just seen a copy of what I think is the Speech Bill referred to in this piece on the Lok Sabha site (pdf here). I'm not sure if its text is the same as that of the copy I had previously seen as I haven't had the chance to compare the two. Please take a look at the pdf on the Lok Sabha site and do not read this piece independently of it. Please note that it is entirely possible that the comments in this piece are not applicable to the Protection of Speech and Reputation Bill, 2016, as introduced in the Lok Sabha; I had not seen the pdf on the Lok Sabha site at the time of writing this piece.

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